left eye on gub'ment

Gang Pop Quiz

Pop quiz: A group of men, all wearing clothing with insignia identifying their loyalty to one another, adhering to a strict hierarchy, observed to associate on a regular basis with one another, and engaged in criminal activity.

Gang or the Penn State football program?

Yes, both. Difference is, despite Jerry Sandusky’s use of the football program to sexually assault ten boys and then top program officials’ active cover-up, the other members of the Penn State football program have not be deemed members of a criminal street gang based on their association with Sandusky. You will not find the Penn State football program alongside the Asian Boyz, Barrios Aztecas, Paisa, and Raza Unida in Appendix A of the 2011 National Gang Threat Assessment’s listing of Pennsylvania gangs. The names of every person associated with the Penn State football program have not been entered into a secret gang database.

The National Association of Criminal Defense Lawyers (NACDL) has long complained that gang databases are over-inclusive, inaccurate, and nearly impossible to challenge. In a 2011 report Gang Databases: Labeled for Life, a defense attorney gave this perspective:

…judges never require the prosecutor or the police to support these allegations (of gang membership). The judges seem to accept the allegations as accurate. However, I have looked into the bases of many such allegations and I often find the defendants are considered to have gang affiliations for such innocuous activities as being stopped on a corner in the presence of another person that has alleged gang affiliations even though neither was alleged to be engaged in any unlawful conduct, having a brother with alleged gang affiliations, wearing a color associated with a particular gang, or living in an area with alleged gang activity.

I was in court today when just such an allegation came up in the course of an everyday plea colloquy. The 18 year old black man in shackles on the stand did as he was told by his attorney and answered ‘yes’ to the long list of questions from the judge (“Do you understand you are giving up your right to a trial? Are you freely and voluntarily pleading guilty? Are you in fact guilty of robbery?”…) but then balked when asked “Are you in fact guilty of criminal street gang activity?”

The young man insisted – much to the irritation of the Court – that he was not a member of a criminal street gang. He admitted to being a part of “a group of guys who grew up together and love each other” who call themselves a certain name and hang out together. He very much wanted to contradict the officer in the Atlanta police department’s gang unit who had testified to the Court earlier about the new threat of “hybrid gangs”: a type of gang without the hierarchies, rituals, loyalty, membership requirements, protection of turf, or any other elements of a traditional gang…but that was, according to the police gang expert, a gang nevertheless.

Given that this young man and two of his friends did indeed beat up and grab the cellphone of someone in their neighborhood, while yelling anti-gay slurs, why does it matter whether they are considered members of a gang?

It certainly mattered today to this young man – gang membership will translate to significantly more time in prison.

More generally, though, gang databases are criticized for using vague (and constitutionally suspect) criteria and having no interest in purging past gang members or otherwise checking for accuracy. The databases have been used to create vague (and constitutionally suspect) gang injunctions, which use the civil legal process to essentially banish people in the databases from their home neighborhoods.

Some additional questions:

The NGIC warns that there has been an “expansion of ethnic-based and non-traditional gangs,” naming “Asian gangs,” “Somali gangs,” “Sudanese gangs,” “Dominican gangs,” “Haitian gangs,” “Jamaican gangs,” and “Mexican gangs” in their latest report. Are gang databases becoming a backdoor for racial profiling?

The federal agency counts 1.4 million active gang members, a 40% increase from the 1 million gang members in 2009. Were these 400,000 new gang members the result of expanding gang membership, or an expanding definition of gangs?

Operation Community Shield, an initiative by ICE, sees deportation as a tool for “to combat the growth and proliferation of transnational criminal street gangs…” Is there no statistic available about who is actually deported through Operation Community Shield because those statistics don’t match the rhetoric?

There are ongoing challenges to the NYPD gang databases that have been built out of its illegal stop & frisk policies. Community organizers in Oakland and Los Angeles are challenging gang injunctions. Pro-immigrant advocates are starting to question Operation Community Shield. Are there other ways to challenge the growing use of “gang” to mean “youth of color”?